Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

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Wednesday, 07 May 2008

Fearing Too Much Justice

That's the title of must-read commentary by Berkeley Law prof Elisabeth Semel for the National Law Journal. LINK

Now that the U.S. Supreme Court has approved Kentucky's administration of lethal injection in Baze v. Rees,
prosecutors, especially in the Death Belt, are tripping over themselves
to roll the gurneys back into the execution chambers. Within hours of
the opinion's release, politicians made announcements similar to the
one delivered by California's Governor Arnold Schwarzenegger: "Today's
U.S. Supreme Court decision supports California's lethal injection
protocol and allows our case to move forward."

Never mind that executions in California are on hold not because ofBaze
but because a state court ruled that the corrections department had
failed to promulgate its protocol according to the requirements of the
state's administrative procedures act. And never mind that a federal
judge who concluded that the state's procedures violated the Eighth
Amendment has yet to review the revised protocol to determine whether
it satisfies the Baze standard. Politicians like Schwarzenegger have grabbed hold of Baze,
proclaimed that it has ended challenges to lethal injection and hope to
ride it through a wave of soon-to-be-scheduled executions. Whether they
are successful depends on whether lower courts heed, or ignore, the
complexities of the court's seven opinions.

And:

Judicial fear of too much litigation, too much inquiry and too much
truth about how the death penalty operates is a familiar one. In 1987,
in McCleskey v. Kemp, the court held that a reliable
statistical study showing the likelihood that racial prejudice
influences Georgia capital sentencing decisions could not be used to
establish race discrimination in the decision to sentence Warren
McCleskey to death. The majority opinion, authored by Justice Lewis
Powell, made much, as did Roberts' opinion, of the constitutional
legitimacy of capital punishment and of federalism. Central to the
ruling, however, was the concern that "McCleskey's claim, taken to its
logical conclusion," would instigate challenges to discrimination at
every level of the criminal justice system. Dissenting, Justice William
J. Brennan Jr. responded that the fear of "apocalyptic consequences"
was, rather, "a fear of too much justice," and the fact that the death
penalty was the legislatively adopted norm in most states was
unpersuasive given the issues at stake: "death and race."

It was scrutiny that the majority in McCleskey feared.
It is scrutiny that some members of the current Supreme Court fear. It
is certainly scrutiny that departments of corrections fear. In 1991,
Powell stated that if he could change his vote in any case it would be
the one he cast 14 years earlier in McCleskey. If trial
courts allow discovery to go forward in lethal injection challenges, we
will not have to wait 14 years for some justices to reconsider what
went wrong in Baze.

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.